Com. v. Spanier, G. ( 2018 )

J-A04034-18
2018 PA Super 184COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
GRAHAM B. SPANIER
Appellant No. 1093 MDA 2017
Appeal from the Judgment of Sentence June 2, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0003615-2013
BEFORE: STABILE, J., NICHOLS, J., and RANSOM, J.*
DISSENTING OPINION BY RANSOM, J.: FILED JUNE 26, 2018
I respectfully dissent from the Majority opinion affirming Appellant’s
conviction. In my view, the Commonwealth violated Appellant’s due process
rights when it failed to inform him of its intent to rely upon an exception to
the statute of limitations at a reasonable time before trial. Moreover, in my
view, this issue is dispositive. Accordingly, I would reverse Appellant’s
conviction and vacate his judgment of sentence.
The Majority Opinion aptly disposes of the facts and procedural history
in this case. However, I would emphasize that, in its Pa.R.A.P. 1925(a)
opinion, the trial court reasoned that the statute of limitations was tolled by
* Retired Senior Judge Assigned to the Superior Court.
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the exception outlined in 42 Pa.C.S. § 5552(c)(3). This marks the first, and
only, mention of the exception at the trial court level.1 See TCO at 9-10.
Most of Appellant’s claims aver that the court erred in denying his post-
sentence motion for a judgment of acquittal. “A motion
for judgment of acquittal challenges the sufficiency of the evidence to sustain
a conviction on a particular charge, and is granted only in cases in which the
Commonwealth has failed to carry its burden regarding that charge.”
Commonwealth v. Foster, 33 A.3d 632, 635 (Pa. Super. 2011).
First, Appellant claims that the court erred in denying his motion for a
judgment of acquittal on the child endangerment charge. See Appellant’s
Brief at 28. According to Appellant, the prosecution, commenced on
November 1, 2012, was not brought within the two-year statute of limitations
applicable for endangering the welfare of children. See Appellant’s Brief at
28-29. Essentially, he raises two arguments: first, that there was no course
of conduct because silence is not a course of conduct, and the jury rejected
this argument;2 and second, that the Commonwealth has waived any
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1 This section provides that, “Any sexual offense committed against a minor
who is less than 18 years of age any time up to the later of the period of
limitation provided by law after the minor has reached 18 years of age or the
date the minor reaches 50 years of age. As used in this paragraph, the term
‘sexual offense’ means a crime under the following provisions of Title 18
(relating to crimes and offenses).” See 42 Pa.C.S. § 5552(c)(3). Endangering
the welfare of a child is one of the enumerated sexual offenses. Id.
2 The question regarding course of conduct was posed to the jury as a question
to determine grading. Pursuant to the statute, the offense is a misdemeanor
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consideration of the exception provided by 42 Pa.C.S. § 5552(c)(3) by not
raising this issue prior to trial. Id. at 28-29, 32-40.
With regard to Appellant’s first argument, he contends that 1) silence
alone cannot constitute a course of conduct, so the statute of limitations was
never tolled, and 2) that the Commonwealth has not presented any evidence
that Appellant owed the children in question a duty of care, or had a
relationship requiring that he owe such a duty in 2001.3 See Appellant’s Brief
at 28, 31 (citing in support Commonwealth v. Popow, 844 A.2d 13, 17 (Pa.
Super. 2004).
In response, the Commonwealth contends that Appellant’s conviction
was a crime of nonfeasance. See Commonwealth’s Brief at 14-15. The
Commonwealth responds that Appellant’s “one action” of failing to inform the
Department of Welfare or the police of Sandusky’s actions created an ongoing
danger to children encountered by Sandusky, and that this failure to report
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of the first degree unless the actor engaged in a course of conduct of
endangering the welfare of a child, which would result in grading the offense
as a felony of the third degree. See 18 Pa.C.S. § 4304(b)(1)(ii). The jury
determined that Appellant had not engaged in a course of conduct such that
the offense would be graded as a felony.
Additionally, 42 Pa.C.S. § 5552(d) provides an exception to the statute of
limitations by stating that an offense is committed either whenever every
element occurs, or if there is a legislative purpose to prohibit a continuing
course of conduct, then the offense is committed at the time when the course
of conduct is terminated. See 42 Pa.C.S. § 5552(d).
3In so doing, Appellant references subsequent sections of his argument. See
Appellant’s Brief at 31.
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was a violation of Appellant’s duty of care. Id. (citing in support
Commonwealth v. Stitt, 947 A.2d 195 (Pa. Super. 2008) (finding that two-
year limitations period was never triggered due to defendant’s continuing
violation of failing to register as a sex offender)). Thus, according to the
Commonwealth, Appellant’s ongoing inaction of failing to report Sandusky’s
actions constituted a course of conduct, and the limitations period did not
terminate until Sandusky’s arrest. Id. Further, the Commonwealth avers that
it appropriately informed Appellant of its intent to toll the statute in such a
manner in the criminal information. Id.With regard to the application of the statute of limitations,
[this] is a question of law. Thus, our standard of review is de
novo and scope of review is plenary. Statutes of limitations are
of course liberally construed in favor of the defendant and against
the Commonwealth.
Commonwealth v. Succi, 173 A.3d 269, 279 (Pa. Super. 2017), reargument
denied (Dec. 12, 2017) (internal citations and quotations omitted).
A statute of limitations defense is properly raised prior to trial in an
omnibus motion to dismiss the charges. See Commonwealth v. Corban
Corp., 909 A.2d 406, 411 (Pa. Super. 2006). The Commonwealth bears the
burden of establishing that a crime as charged was committed within the
applicable limitations period. Id.A prosecution for endangering the welfare of children must be
commenced within two years after it is committed. See 42 Pa.C.S. § 5552(a).
Except as otherwise provided by the general rules, a prosecution is
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commenced either “when an indictment is found or an information under
section 8931(b) (relating to indictment and information) is issued, or when a
warrant, summons or citation is issued, if such warrant, summons or citation
is executed without unreasonable delay.” See 42 Pa.C.S. § 5552(e). The
limitations period normally begins to run on the day after every element of a
charge occurs. See 42 Pa.C.S. § 5552(d). However, “if a legislative purpose
to prohibit a continuing course of conduct plainly appears, at the time when
the course of conduct or the complicity of the defendant therein is terminated,
time] starts to run on the day after the offense is committed.” Id.
In this case, the EWOC statute reflects a legislative purpose to prohibit
a continuing course of conduct as it places a heavier penalty upon such an
offense. The statute provides that a defendant engaging in a course of
conduct, as opposed to a single instance of the crime, commits a felony of the
third degree rather than a misdemeanor of the first degree, and is accordingly
subject to a longer term of incarceration. See 18 Pa.C.S. § 4304(b)(1)(i)-(ii).
Accordingly, the statute would run on the date that the conduct or complicity
of the defendant ends. Thus, I must determine whether Appellant’s inaction
was actionable in 2011, when charges were filed against him.
To convict a defendant of EWOC, the Commonwealth must prove beyond
a reasonable doubt that “[a] parent, guardian or other person supervising the
welfare of a child under 18 years of age, or a person that employs or
supervises such a person . . . knowingly endanger[ed] the welfare of the child
by violating a duty of care, protection or support.” 18 Pa.C.S. § 4304(a).
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I will first address whether Appellant owed a duty of care to the children.
The exact nature of this duty is malleable. The comments to 18 Pa.C.S. §
4304 note that the section “consolidates and simplifies the various provisions
concerning crimes endangering the welfare of children. The offense involves
the endangering of the physical or moral welfare of a child by an act or
omission in violation of legal duty even though such legal duty does not itself
carry a criminal sanction.” See 18 Pa.C.S. § 4304 cmt. Pennsylvania courts
have held that the Commonwealth must prove that the defendant: 1) was
aware of his duty to protect the child; 2) was aware that the child was in
circumstances that could threaten the child’s physical or psychological
welfare; and 3) has either failed to act or has taken action so lame or meager
that such actions cannot reasonably be expected to protect the child’s welfare.
See Commonwealth v. Pahel, 689 A.2d 963, 964 (Pa. Super. 1997).
Appellant relies largely upon Commonwealth v. Taylor, 471 A.2d
1228 (Pa. Super. 1984), to argue that he did not owe a duty of care to the
child victim in this case. See Appellant’s Brief at 40-41. He claims that Taylor
held that 1) the duty cannot be the duty owed by all citizens to one another
or that a stranger may owe a minor child, and 2) the duty must arise from
contractual obligation, settled principles of tort or family law, or from other
legal sources. Id. at 41. However, this is an inaccurate statement of the law:
Taylor does not support Appellant’s claims.
In Taylor, a father drove drunk with his minor daughter and her friend
in the car. Id. at 1229. Later that night, still drunk, he took both girls to a
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motel room, where he made sexual advances towards them and choked them.
Id. The panel examined the relevant law regarding the duty of care,
examining the Model Penal Code and noting that such a duty need not be
stated in the code, but may arise from contractual obligations, settled
principals of tort or family law, or other legal sources. Id. at 1230-31
(emphasis added). Further, the court reiterated that the “common sense of
the community, as well as the sense of decency, propriety and the morality
which most people entertain is sufficient to apply the statute to each particular
case, and to individuate what particular conduct is rendered criminal by it.”
Id. at 1231.
Ultimately, this Court found that the evidence was sufficient to permit a
jury to find that the defendant had violated a duty owed to children in his
custody. Id. at 1231. However, the panel granted the defendant a new trial
because the court had permitted a conviction based on a theory of criminal
liability which had never been alleged by the Commonwealth or substantiated
by proof. Id. at 1231-32. Accordingly, Taylor did not hold that the duty
must arise from the enumerated sources, but merely noted that the duty may
arise from those sources, and “others.” Id. at 1230-31. Additionally, I find
it of import to note that the court reiterated the common sense of the
community is sufficient to apply the statute to individual cases. Id.
Other statutes are helpful in examining whether a duty was owed. In
our view, the duty in the instant case is comparable to that imposed by the
statutory provisions criminalizing the failure to report child abuse. As noted,
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supra, the Commonwealth’s contention is that Appellant’s failure to report the
sexual abuse of children on his campus to the police or the Department of
Welfare was a violation of his duty of care. The Domestic Relations Code
provides that a school employee must report suspected child abuse if the
person has reasonable cause to suspect that a child is a victim of child abuse.
See 23 Pa.C.S. § 6311(a). The statute penalizes the failure to report
suspected child abuse or make a referral to the appropriate authorities if the
person or official willfully fails to do so. See 23 Pa.C.S. § 6319. Further, the
offense is graded as a felony where the person or official 1) willfully fails to
report, or 2) has direct knowledge of the nature of the abuse. Id.
Additionally, any person is encouraged to report suspected child abuse if that
person has reasonable cause to suspect that a child is a victim of child abuse.
See 23 Pa.C.S. § 6312 (emphasis added). The statute imposes an affirmative
duty to report such cases on mandated reporters, and encourages the
affirmative duty in cases of those who are not mandated reporters. It
punishes the lack of action or willful failure to report in those who are
mandated reporters.
Here, the common sense of the community and an individual sense of
decency and morality would compel any reasonable person, but particularly a
school official, to recognize and accept an affirmative duty, in a case of
credible allegations of child abuse, to report the incident to the Department of
Welfare or the police. This, Appellant did not do. Accordingly, he violated a
duty of care owed to the child victim in the 2001 incident.
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Equally instructive in failure to report cases is that criminal liability for
this failure to report is also subject to a statute of limitations. Like the statute
for EWOC, failure to report is subject to a two-year statute of limitations. See
42 Pa.C.S. § 5552. Unlike EWOC, however, there is no course of conduct
exception, meaning that the discreet incident of failure to report does not
continue beyond the period provided by the statute. Indeed, Appellant was
charged with the failure to report suspected child abuse under this statute,
but this charge was dismissed as it was beyond the statute of limitations.
With these principles in mind, I must determine whether Appellant’s
violation of his duty of care was actionable outside of the two-year period and
whether the Commonwealth could legally bring such an action based upon the
course-of-conduct exception. In Popow, this Court held that the logical
interpretation of the statutory language of 18 Pa.C.S. § 4304(b) is “that it is
designed to punish a parent who over days, weeks, or months, abuses his
children, such as repeatedly beating them or depriving them of food . . . the
statute was clearly not designed for an event that occurs within minutes, or,
perhaps in a given case, even hours.” Id. at 17. Since deciding that case,
our Court has further noted that it is multiple acts, not the duration of time
between the acts which is the operative concern. Commonwealth v. Kelly,
102 A.3d 1025, 1030–31 (Pa. Super. 2014).
The Commonwealth, on the other hand, employs a rather tortured
argument to suggest that Appellant’s inaction was a continuing course of
conduct and that his “one action” created an ongoing danger to any child
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brought onto the campus or encountered by Sandusky. The sole authority
cited in support of its contention is Commonwealth v. Stitt, 947 A.2d 195(Pa. Super. 2008).
In Stitt, a convicted sex offender was charged with failure to register
pursuant to 42 Pa.C.S. § 9795.2(a)(2)(i). Id. at 196. This crime also carried
a two-year statute of limitations. Id. at 197. Stitt argued that the
Commonwealth had two years from the date of the crime – his failure to
register his change of residence on July 14, 2002 – to file a criminal
information. Id. Thus, according to the appellant, the Commonwealth should
have commenced prosecution by July 2004. Id. However, the
Commonwealth did not file its information until May 18, 2005, almost a year
later. Id. Our Court rejected the argument, finding that the course of conduct
exception applied, because
[w]hile compliance with this statute is accomplished with the
discrete act of appearing at the proper place and informing the
proper authorities of one’s residence, the failure to register
represents the ongoing act of preventing the purpose of
registration. Thus, it would be the termination of failing to
register that triggers the running of the statute of limitations.
If Stitt had registered with the authorities in September, 2002—
two months late—the Commonwealth would have had until
September, 2004 to prosecute him for the late registration. But
Stitt did not register tardily, thus triggering the running of the
statute of limitations. Stitt did not register at all—his absolute
failure to register represents the ongoing violation of section
9795.2. Thus, the statute of limitations did not begin to run and
so could not have been violated.
Stitt, 947 A.2d at 197–98.
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The sex offender statute places an affirmative duty to register upon the
defendant, and the termination of that crime – either by arrest, or by late
registration – triggers the statute. Id. The failure to register is in itself the
crime, and that crime continues until the action is ended. Id. In the instant
case, however, there is no such ongoing obligation enshrined in the statute.
A defendant endangers the welfare of a child by violating a duty of care,
protection, or support, and unless there is a course of conduct or some other
exception applicable, the statutory period ends at two years. See 18 Pa.C.S.
§ 4304(a)(1); 42 Pa.C.S. § 5552(a).
Here, the actions alleged as a violation are that Appellant, Curley and
Schultz, entered into an agreement not to report the 2001 incident to the
police or DHS, in exchange for Sandusky’s promise to stay out of campus
facilities and not to bring children into the facilities. As noted above, case law
defining a course of conduct notes that the logical interpretation of the
legislative language is that it should punish continuing conduct of multiple
instances of abuse. Popow, 844 A.2d at 17. Similarly, parents who withheld
critical medical services due to their religious beliefs engaged in a course of
conduct where 1) their pattern of inaction led to the death of their son and 2)
they were aware that the child was in circumstances threatening his life, and
their “lame and meager” actions could not have been expected to protect his
welfare. See Commonwealth v. Foster, 764 A.2d 1076, 1081-83 (Pa.
Super. 2000).
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Here, once Appellant agreed to the plan, while he may have violated his
duty of care, his involvement ended with his February 27, 2001 email,
agreeing to the revised plan not to report Sandusky to DPW. The
Commonwealth has introduced no additional evidence to show that Appellant
was aware of any incidents involving Sandusky after 2001 nor his active
involvement in any further actions involving Sandusky. Accordingly, the
course of conduct exception is inapplicable as a matter of law, where Appellant
endangered the welfare of a child by failing to report suspected child abuse,
and where the charges were not brought within the statute of limitations.
Finally, Appellant takes issue with the manner in which the trial court
applied the statute of limitations. In its Pa.R.A.P. 1925(a) opinion, the trial
court noted that the legislature had amended the statute of limitations relating
to sexual offenses against children, including EWOC. See TCO at 9-10 (citing
in support 42 Pa.C.S. § 5552(c)(3)). For such crimes, the statute of
limitations begins “up to the later of the period of limitation provided by law
after the minor has reached 18 years of age or the date the minor reaches 50
years of age.” See 42 Pa.C.S. § 5552(c)(3).4 The trial court noted that the
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4 At the time of the offense, 42 Pa.C.S. § 5552(c)(3) provided that for a sexual
offense against a minor, prosecution could be commenced within two years
after the victim’s eighteenth birthday. 1990 Pa. Laws 1341, No. 208, § 1.
The statute was amended January 29, 2007. See 42 Pa.C.S. § 5552(c)(3).
Where a limitation period has begun to run before the statute repealing the
statute takes effect, the time which is already run is deemed part of the time
prescribed by the limitation. See 1 Pa.C.S. § 1975; Commonwealth v.
Riding, 68 A.3d 990, 994-96 (Pa. Super. 2013). Thus, the court contends
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child victim in the 2001 incident was ten to twelve years old; thus, the statute
would run in approximately 2039. Id. at 10. Appellant asserts that reliance
on this section of the statute was procedurally improper where this provision
was never raised before or at trial. Id. at 32 (citing in support
Commonwealth v. Bethlehem, 570 A.2d 563, 565-67 (Pa. Super. 1989)
(noting that a post-verdict basis for applying an exception is unsustainable,
where the facts of the case did not permit application of the tolling provisions
in the first instance), abrogated on other grounds by Commonwealth v.
Gerstner, 656 A.2d 108 (Pa. 1995)).
I reject the trial court’s reliance upon this section. Moreover, I find the
Majority’s attempt to rationalize this belated reliance unpersuasive. As I will
explain, infra, the Commonwealth’s failure to invoke the exception violated
the due process requirements of notice.
Historically, where the Commonwealth sought to toll the statute, it was
required to allege the exception to the statute in the indictment itself. See
Commonwealth v. Bender, 380 A.2d 868, 870 (Pa. Super. 1977) (reversing
judgment of sentence and discharging defendant where the indictment did not
notify defendant that Commonwealth sought to toll the statute of limitations).
The Commonwealth must “apprise the defendant that he must defend not only
against the crime itself but also against the limitation of prosecution.”
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that the prosecution was timely commenced because the amendment to the
statute took place prior to the victim’s eighteenth birthday. See TCO at 9-10.
Regardless, based upon our analysis infra, the timing of the filing is of no
moment.
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Commonwealth v. Cody, 156 A.2d 620, 623 (Pa. Super. 1959). Cody also
provides further guidance as to the reasoning behind this holding:
[The defendant] should be informed before trial why the statute
of limitation has no application. The opportunity to prepare a
defense against such allegation should be given to the same
extent as the opportunity to defend against the accusation of
crime itself. Were it otherwise, no attack, preliminary to trial,
could ever be made on this ground, and if made during or
subsequent to trial, an accused would be faced with the well-
established rule that an attack on an indictment will not be
considered after a plea is entered and the jury is sworn.
Cody, 156 A.2d at 623 (emphasis added) (citing, inter alia, Blackmun v.
Commonwealth, 17 A. 194 (Pa. 1889)). Thus, proper notice was deemed
essential because it informs a defendant not only of the facts alleged but also
a specific reason why, despite a delay in prosecution, such prosecution may
nonetheless commence. Id. at 623. Absent such notice, a defendant suffers
prejudice. Id.
In one of the seminal cases discussing this issue, the Pennsylvania
Supreme Court’s conception of prejudice evolved. According to the Court, the
Commonwealth was not required to include any notice of tolling or exceptions
to the statute of limitations in the criminal information; rather, any pretrial
notice was sufficient. See Commonwealth v. Stockard, 413 A.2d 1088,
1092 (Pa. 1980).
In Stockard, the defendant was charged with and convicted of five
counts of theft by failure to make required disposition of funds received, 18
Pa.C.S. § 3927, and five counts of violating Section 1-401(b) of the
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Pennsylvania Securities Act of 1972, 70 P.S. § 1-401(b). Stockard, 413 A.2d
at 1089. Prior to trial, the defendant filed a motion to dismiss the criminal
complaint with respect to the Section 3927 charges, averring that the two-
year statute of limitations had expired prior to the time prosecution
commenced and because the Commonwealth did not inform him in the
indictment that it would seek to toll the statute.5 Id. at 1092.
Ultimately, the Court concluded that the statute had been tolled within
the limitations period, and because the Commonwealth informed the
defendant of its intent to toll the statute in the answer to the motion to dismiss
the complaint, the due process requirements of notice were satisfied. See
Stockard, 413 A.2d at 1092-93. Since Stockard, as I will discuss infra, our
Courts have used the concept of “tolling” the statute in reference to both the
specific section regarding tolling cited in Stockard – now enshrined at 42
Pa.C.S. § 5554 – as well as to other codified exceptions to the statute of
limitations.
In conclusion, although Stockard relaxed the requirements of due
process, granting the Commonwealth greater flexibility in the timing of its
notice to a defendant of its intention to toll the statute of limitations, the Court
reaffirmed the ancient rule that allegations of fact alone did not provide a
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5At the time of the defendant’s arrest, the Crimes Code provided that “[t]he
period of limitation does not run . . . during the time when the accused is
continuously absent from this Commonwealth or has no reasonably
ascertainable place of abode or work within this Commonwealth.” 18 Pa.C.S.
108(f) (1973); see also Stockard, 413 A.2d at 1092.
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defendant with an opportunity to challenge the tolling of, or some other
exception to, the statute of limitations. Id.; see also Cody, 156 A.2d at 623;
Blackmun, 17 A. at 194.
Subsequent case law has consistently applied this standard. In
Commonwealth v. Bidner, 422 A.2d 847, 849-50 (Pa. Super. 1980)
superseded by statute as recognized by Commonwealth v. Nypaver, 69
A.3d 708, 713-14 (Pa. Super. 2013), the defendant was charged with entering
a false address on a Voter’s Registration Affidavit. See Bidner, 422 A.2d at
111. The trial court found that the information had not been brought within
the statute of limitations and dismissed the charges. Id. Although the
Commonwealth did not inform the defendant that it would seek to apply the
exception, it specifically averred in the information that the crime contained a
material element, fraud, which constituted an exemption from the limitations
period under the applicable statutes. Id. at 854-55. Thus, this Court found
that the information was not fatally defective and reversed. Id.In contrast to Bidner, in Commonwealth v. Eackles, the defendant
was convicted of multiple counts of forgery, theft by unlawful taking, and
conspiracy. See Commonwealth v. Eackles, 428 A.2d 614, 616 (Pa. Super.
1981). The question in this case was whether fraud was a material element
of theft by unlawful taking, such that the Commonwealth could “toll” the
statute of limitations using the fraud exception then codified at 18 Pa.C.S. §
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108(c)(1).6 Id. at 618. The panel concluded that fraud was not a material
element of theft by unlawful taking. Id. The panel also, citing Stockard,
noted that “where the Commonwealth seeks to toll the statute under this
section” with an exception, it must inform the defendant of said intention
within a reasonable time so the defendant may defend against it. Id. Thus,
because the information did not allege that the theft was accompanied by
fraud or that fraud was a material element to the theft, the Commonwealth
could not later rely upon this exception to commence prosecution. Id.
In Commonwealth v. Cruz, the defendant was charged with escape
for failing to return to prison after his furlough and for absconding to Puerto
Rico and then Chicago. See Commonwealth v. Cruz, 512 A.2d 1270, 1270-
71 (Pa. Super. 1986). The applicable statute of limitations was two years.
Id. The majority, citing Stockard, concluded that because the facts were
received in the arrest warrant affidavit, and because the defendant was aware
of the alleged facts, he was not prejudiced. Cruz, 512 A.2d at 1272.
However, the majority noted further, despite this implicit notification, that the
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6 The fraud exception may now be found, with nearly identical wording, at 42
Pa.C.S. § 5552(c)(1). At the time, 18 Pa.C.S. § 108(c)(1) provided that a
prosecution could be commenced beyond the expiration of the statute of
limitations where “any offense a material element of which is . . . fraud . . .
within one year after discovery of the offense by an aggrieved party or by a
person who has legal duty to represent an aggrieved party and who is himself
not a party to the offense, but in no case shall this paragraph extend the
period of limitation otherwise applicable by more than three years.” Eackles,
428 A.2d at 618.
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defendant had waived any challenge to the legitimacy of the information by
failing to raise the limitation issue pre-trial. Id.The Cruz dissent is instructive, noting specifically that the majority
found waiver and suggests, therefore, that any further substantive analysis is
dicta. Cruz, 512 A.2d at 1272-73 (finding factual notice insufficient because
defense counsel does not routinely receive the affidavit submitted in a request
for an arrest warrant).7
In Commonwealth v. Bethlehem, the defendant was convicted of
rape, statutory rape, and involuntary deviate sexual intercourse as a result of
the sexual abuse of his niece. See Commonwealth v. Bethlehem, 570 A.2d
563, 564 (Pa. Super. 1989), abrogated on other grounds by Commonwealth
v. Gerstner, 656 A.2d 108 (Pa. 1995). Prior to trial, the defendant sought to
dismiss the charges. Id. At that time, the Commonwealth did not raise an
applicable statutory exception; its sole argument was that “time elements
were not controlling in cases involving minors,” relying upon an unpublished
decision of this Court. Id. at 564-65. Instead, the trial court accepted the
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7 The dissent offered its own analysis of Stockard, finding that the case
requires
more than simply that a defendant be aware of the facts on which
the Commonwealth might base an allegation; it holds that due
process requires pre-trial notice that the Commonwealth will
allege the exception. Without that specific notice, in a document
which the defendant will receive, the defendant is denied his due
process right to an opportunity to defend against the allegation.
Cruz, 512 A.2d at 1273.
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Commonwealth’s post-verdict assertion that 42 Pa.C.S. § 5554(3) applied to
toll the limitations period. Id. at 565.
Our Court reversed for two reasons. First, it noted that the law “requires
that any allegation that the running of a statute of limitations period was tolled
by an applicable statutory exception must be made in the complaint itself, or
at the latest, a reasonable time before trial.” Bethlehem, 570 A.2d at 565
(citing in support Cruz, supra, and Eackles, supra) (emphasis added).
There was no pretrial notice, either actual or constructive, that the
Commonwealth sought to apply an exception to the statute. Id. Second, the
post-verdict basis was unsustainable on the merits. Id. at 565-66
(concluding that “person responsible for the child’s welfare,” as used in statute
tolling limitations period, was not synonymous with the legal term in loco
parentis). Essentially, the Commonwealth’s reliance upon an erroneous
statement of law did not give the defendant sufficient notice that the
Commonwealth sought to evade the statute of limitations with an enumerated
exception. Id.
In Commonwealth v. Morrow, the defendant was charged with
indecent assault of a victim under the age of eighteen. See Commonwealth
v. Morrow, 682 A.2d 347, 348 (Pa. Super. 1996). In an omnibus pre-trial
motion, the defendant sought to dismiss the charges as being beyond the
applicable statute of limitations. Id. At a hearing on the motion, the
Commonwealth notified the defendant in writing of its intent to toll the statute
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under 42 Pa.C.S. § 5554(3).8 The trial court rejected this argument and
dismissed the charges. On appeal, the Commonwealth argued that the court
erred in dismissing the charges because under 42 Pa.C.S. § 5552(c)(3), the
charges were exempt from the limitations period. Id.
Citing favorably to Stockard, Bidner, and Cruz, the panel held that the
defendant was on notice that a statutory exception applied, where the
complaint specifically averred that the victim was under fourteen years of age.
Id. at 349. Further, the Commonwealth had satisfied due process by
informing the defendant of its intent to toll the statute with its response to the
defendant’s pretrial motion to dismiss. Id. Again, Morrow emphasizes that
factual notice is required, but this requirement is distinct from the equally
important notice that an exception to the normal running of the statute of
limitations is applicable. See Morrow, supra.In Commonwealth v. Russell, 938 A.2d 1082 (Pa. Super. 2007), the
defendant was charged with second degree murder and several other felonies
perpetrated in connection with the murder. Russell, 938 A.2d at 1987-89.
All of the non-murder crimes were beyond their respective statutes of
limitations, but the Commonwealth commenced prosecution based upon the
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8 “Except as provided by section 5553(e) (relating to disposition of
proceedings within two years), the period of limitation does not run during
any time when . . . a child is under 18 years of age, where the crime involves
injuries to the person of the child caused by the wrongful act, or neglect, or
unlawful violence, or negligence of the child's parents or by a person
responsible for the child's welfare, or any individual residing in the same home
as the child, or a paramour of the child's parent.” See 42 Pa.C.S. § 5554(3).
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“any felony alleged to have been perpetrated in connection with a murder”
exception. Id.; see also 42 Pa.C.S. § 5551(4). Ultimately, the defendant
was acquitted of the murder but convicted of several other crimes, including
arson endangering persons, arson endangering property, risking a
catastrophe, and cruelty to animals. Id.
On appeal, the defendant argued that to toll the statute of limitations,
the Commonwealth must state in the criminal information the exception to the
statute of limitations on which it relied. Russell, 938 A.2d at 1088. The
defendant argued that because the Commonwealth had relied upon 42 Pa.C.S.
§ 5551(4) (no limitations applicable for any felony alleged to have been
perpetrated with murder of first or second degree), and the jury had acquitted
her of murder, her conviction for arson could not stand, as it was commenced
beyond the statute of limitations. Russell, 938 A.2d at 1088. The panel held
that, pursuant to Stockard, the Commonwealth satisfied its notice
requirement where it apprised the defendant of its intent to rely upon 42
Pa.C.S. § 5551(4) to bypass the statute of limitations at a reasonable time
prior to trial, in this case, at the hearing to resolve the defendant’s motion to
dismiss. Id. Thus, as the defendant was expressly aware of the
Commonwealth’s intention to rely on the exception, the defendant incurred no
prejudice. Id.
As this line of cases makes clear, the law remains well settled.
Essentially, provided the defendant, at some reasonable time prior to trial is
apprised that the Commonwealth will seek to toll the statute, the due process
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requirements of notice are met. See Stockard, 413 A.2d at 1092; Cruz, 512
A.2d at 1272-73; Morrow, 682 A.2d at 349; Russell, 938 A.2d at 1088;
Cody, 156 A.2d at 623. The notice itself, and accordingly the opportunity to
defend, is the operative and most important aspect: this is the due process
concern that must be satisfied. Id.
The Majority contends that, pursuant to Morrow and Commonwealth
v. Houck, 102 A.3d 443, 449-50 (Pa. Super. 2014) (noting that a defendant
may be convicted of a crime not actually charged when the uncharged offense
is a lesser-included offense; he will have been put on notice of the charges
against him), the Appellant was constructively aware of the applicable
statutory provision, as there was testimony that the victim was ten to twelve
years old. This argument falls flat in the face of the Commonwealth’s
continued reliance upon the course of conduct exception, which I have
rejected supra. As noted in Bethlehem, “there is a fundamental difference
between knowledge of the existence of a statutory provision and receipt of
notice that the prosecution will seek application of a given provision in a
particular case with sufficient time prior to trial to prepare to challenge
application of the provision.” Bethlehem, 570 A.2d at 565 n.1; see also
Stockard, 413 A.2d at 1092; Cody, 156 A.2d at 623.
Here, similarly, Appellant prepared his defense in response to the
Commonwealth’s express reliance upon the course of conduct exception. See,
e.g., Cruz, 512 A.2d at 1272-73; see also Morrow, 682 A.2d at 349.
Appellant was unsuccessful in this challenge before the trial court, and the
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matter proceeded to trial. Unlike the situation in Morrow, the Commonwealth
did not notify Appellant of its intention to toll the statute here, based upon its
assertion that the course of conduct exception applied. See Morrow, 682
A.2d at 349. In fact, it did not inform Appellant of its intention at all.9 Absent
proper pretrial notice, the requirements of due process were not met.
Accordingly, I cannot accept the trial court’s assertion that 42 Pa.C.S. §
5552(c)(3) operates to extend the statute of limitations or any reliance by the
Commonwealth upon this provision. The first instance of reliance upon this
statute was in the court’s 1925(a) opinion. As it was not raised prior to trial
by the Commonwealth and Appellant did not have the opportunity to defend
himself against it, I am constrained to find that Section 5552(c)(3) does not
operate to extend the statute of limitations.10 See Morrow, 682 A.2d at 349;
Stockard, 413 A.2d at 1092.
The Commonwealth supplies no additional authority to support its
contention that we should expand the EWOC statute of limitations in such a
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9 I note that, in its brief, the Commonwealth declines even to address its
failure to properly notify Appellant at all. See Commonwealth’s Brief at 13-
20.
10 I note with disfavor the lackadaisical manner in which the Commonwealth
brought this case to trial and in not preserving all potential exceptions to the
statute, if appropriate. As Appellant notes in his brief, the Commonwealth did
not prove that the child in the shower was underage. See Appellant’s Brief at
37-38. I note, with equal disapproval, that it was Appellant’s own inaction
that prevented the Commonwealth from proving anything about the child’s
identity or age.
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manner, and I can find none.11 Accordingly, based on the above, I cannot
agree that the course of conduct or the sexual offenses against minors
exceptions toll the statute in this case, and I would reverse Appellant’s
conviction and vacate his judgment of sentence. Thus, I dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2018
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11 There is nothing in the current statute or case law that permits a finding of
course of conduct based upon inaction. This may be an issue for the
legislature to address in the future, but as noted supra, this Court is
constrained by the current state of the law.
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